Courts, Lawyers and Judges PART II: UK

Courts and lawyers in England

“The UK” The UK means the United Kingdom The UK has 3 separate legal systems: one for England and Wales, one for Scotland and one for Northern Ireland The Scottish legal system (see handout) is very different to that of England and Wales – it is considered a ‘mixed system’ of common and civil law When England, Scotland and Wales are referred to together its called “Great Britain”; when Northern Ireland is added its called the “United Kingdom” Most of these slides refer to the law of England and Wales – usually just called “England” But note that the UK Supreme Court is the court of last resort for some cases in Scotland and Northern Ireland, too To read about the 3 branches of government click here: http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/jud-acc-ind/justice-sys-and-constitution

England Supreme Court is the highest court (this was changed in 2009 – formerly the House of Lords was the highest court but this was changed to improve the ‘separation of powers’) Please note that the reading from Zweigert and Kotz should be read, bearing in mind that the law was CHANGED by a statute assed in 2005, that came into effect in 2009 so that the House of Lords IS NOT the highest court anymore, now it is the Supreme Court How Does Britain Work? The Justice System (7 mins 56 sec) : http://www.youtube.com/watch?v=aL4ENsRhWzw

England – Courts hierarchy Source: http://law.duke.edu/lib/researchguides/english/ Perhaps the European Court of Human Rights should be placed here above the Supreme Court

England. 1. COURTS In England and Wales, civil and criminal courts are distinct Note that in this context, ‘civil’ refers to a wrongful act that may give rise to civil proceedings (eg a breach of contract or negligence) whereas ‘criminal’ refers to a wrongful act which may give rise to criminal proceedings (eg murder, theft etc) Magistrates courts are mainly the 1st instance courts for criminal matters http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/judicial+roles/magistrates/magistrates County courts are mainly the 1st instance courts for civil matters Magistrates courts are staffed by “Justices of the Peace” (JPs) who are lay people, with no legal training, sitting with a clerk (clerks to the justices: advise on matters of law, they are legally qualified, usually assisted by assistant clerks who are unqualified) Civil matters, for example, pub licensing, can also be dealt with by magistrates. More complex cases or those involving large amounts of money will appear at the High Court; the vast majority of civil cases take place in the County Courts. County courts are staffed by a single judge with either a Circuit Judge or a District Judge Read more here http://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/county-court/county-court#headingAnchor2

England. Courts - appeals Criminal cases start in the Magistrates (sometimes in the Crown) court – appeals from the Crown Court will go to the High Court and maybe to the Court of Appeal and maybe even to the Supreme Court Civil cases usually start in the county court – appeals are to the High Court, Court of Appeal and Supreme Court The Court of Appeal is one court with 2 divisions (civil and criminal): compare with France This pdf shows the path of appeals: http://www.judiciary.gov.uk/Resources/JCO/Images/Layout/courts_structure.pdf Note that more appeals are available than in the French system! See pp6-17 of Glanvile Williams Learning the Law

England. Courts – how many appeals? When an appeal is taken to the Court of Appeal (either from the High Court or from a Divisonal Court) a further appeal lies (with permission) to the Supreme Court Why two appeals should be allowed can be explained only by history Historically, the second appeal was going to be abolished in 1873 but the Conservative party took power and refused to allow the removal of the House of Lords as the ultimate judicial body (probably fearing that it might lead to the removal of the HL as a legislative body) The majority seem to support the status quo: the Court of Appeal is too busy to give ‘detached reflection’ to really important questions – its good to give that job to a higher court (see Glanville Williams at 9-10)

You fill in the blanks! Rather than me write a whole lot of notes about the various aspects of the UK legal system, try to take your own notes on the various courts Here’s a website that’s useful if the readings are not enough: http://www.judiciary.gov.uk/about-the-judiciary/introduction-to-justice-system Take a look through it – it has a wealth of information including diagrams and videos

House of Lords  Supreme Court Formerly the House of Lords was the final court in Englahd The House of Lords Until October 2009, the House of Lords was the highest court in the United Kingdom. Judges appointed to sit in the House of Lords were life peers, entitled to take part in the debate and enactment of Government legislation - although in practice, they rarely did so. Their official title was Lords of Appeal in Ordinary, however they were usually known as Law Lords. There were 12 Law Lords, and their role was to hear cases from the lower courts, most often the Court of Appeal. In recent years, there had been mounting calls for the creation of a new free–standing Supreme Court separating the highest appeal court from the second house of Parliament, and removing the Lords of Appeal in Ordinary from the legislature. On 12 June 2003 the Government announced its intention to do so and the new Supreme Court opened for business in October 2009. Source: http://www.judiciary.gov.uk/about-the-judiciary/introduction-to-justice-system/the-house-of-lords

THE SUPREME COURT Supreme Court: What is it? “The Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.” Their homepage: http://supremecourt.uk Role: The Supreme Court: is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland hears appeals on arguable points of law of general public importance concentrates on cases of the greatest public and constitutional importance maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world 8 min video: http://supremecourt.uk/about/introductory-film.html

2. JUDGES Judges in the UK are appointed by the Judicial Appointments Commission (JAC) which is a non-departmental, non-political, independent body created on 3 April 2006 as a result of the Constitutional Reform Act 2005 The JAC was set up to create a more accountable and transparent process for judicial appointments Website: http://jac.judiciary.gov.uk/about-jac/about-jac.htm It selects judges based on merit The Commission has 15 members: 2 from the legal profession 5 judges 1 tribunal member 1 lay justice 6 lay people (including the Chairman) Judges are appointed on the basis of criteria: They have to complete an application form Some will be invited to take a selection test Then some will be invited to an interview Then recommendations are made, based on merit, to the Commissioners Then the appointments are made by the Lord Chancellor

JUDGES – appointment There is no ‘judicial career’ for judges in England - they do not choose to become a judge after law school as in the civil law systems All judges in the UK are appointed by the JAC following an advertisement, application, test and selection procedure A ‘reasonable length’ of service as a lawyer before appointment to the bench is required (5-7 years?) Usually, only experienced lawyers will be appointed to the bench No age limits except that retirement of all judges is at the age of 70 It is not a political process (compare with the US) There is a citizenship requirement: applicants must be a citizen of the UK, Republic of Ireland or a Commonwealth country See http://jac.judiciary.gov.uk/selection-process/eligibility-faqs.htm for more info on appointment

JUDGES – selection criteria How should Supreme Court judges be appointed? Current criteria – ‘merit’ This has been criticised as not being fit for purpose Recently there has been criticism of the criteria of ‘merit’ for appointing judges: http://www.theguardian.com/law/2012/mar/26/report-judicial-appointments-not-fit A report argues that choosing based on ‘merit’ results in judges being selected who are replicas of existing judges. Report suggests alternative criteria of “who ever will be of greatest benefit to the judiciary” There is a need for ‘greater diversity’ and the current criteria of ‘merit’ is simply delivering the ‘most brilliant lawyer currently available’ What do you think? Is diversity on the bench important and why? What should the criteria be for appointing judges to the top court?

JUDGES - removal Either the House of Commons or the House of Lords can petition the Queen to remove a judge of the High Court or Court of Appeal. The power to do so is placed by 1701 Act of Settlement and is now contained in section 11(3) of the Supreme Court Act 1981. It has never had to be exercised in England and Wales. It has in fact only been exercised once, when Sir Jonah Barrington was removed from office as a judge of the Irish High Court of Admiralty in 1830 for corruption: he misappropriated funds due to litigants. No English High Court or Court of Appeal judge has ever been removed from office under these powers. Circuit and District Judges can be removed by the Lord Chancellor. However, he can only do so if the Lord Chief Justice agrees. This power has only been exercised twice; once in 1983 when a judge was caught smuggling whisky from Guernsey into England; the other in 2009, for a variety of inappropriate behaviour. To read more on the removal of judges, visit: http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/jud-acc-ind/judges-and-parliament

LAWYERS In the UK there is a a split bar Solicitors mainly take instructions from the public and prepare the case for trial Barristers are advocates who argue the case in court – they cannot take instructions directly from the public There is a long-running debate over whether this split bar should continue It doesn’t exist in all common law countries (e.g. in New Zealand all lawyers are admitted to the bar as barristers and solicitors of the High Court of NZ) Here’s a link to some more info: http://www.thefoxfund.com/reports/court.pdf

Some comparisons and some links to further information…

JUDGES Many comparisons could be drawn about judges: how they are appointed/selected, requirements to be considered as a judge, removal/retirement etc Also we could compare how they are perceived and the job they do; the types of judgments they write, etc Here’s an interesting paper: http://epstein.usc.edu/research/conferencepapers.2000SciStudy.pdf

PRECEDENT It’s commonly stated that the common law is built on the doctrine of precedent or binding precedent or in Latin stare decisis It means that like cases shall be decided alike Lower courts are bound by cases decided by higher courts Courts at the same level stand by and follow their own earlier decisions Later courts are bound by the decisions made before them The highest court can depart from its own precedent But in the civil law legal systems, the highest courts (eg. French Court of Cassation) does not usually refer to previous decisions Some videos of interest: The Common law: The role of precedent LLB Weekend University of London International Programme (52 mins)http://www.youtube.com/watch?v=1eBzHKw1wpE&list=PL1jGr_gNWxGYKHuT9KIgPv4Of48U_GdDD

PRECEDENT (stare decisis) v JURISPRUDENCE CONSTANTE… Although precedent is a hallmark of the common law systems, there is some evidence of it in the civil law legal systems too For example, the Court of Cassation in France has the job of ensuring that the body of case law is consistent There is a similar principle to stare decisis in the civil law – its called jurisprudence constante Here’s a quote about it: Jurisprudence constante is a legal doctrine according to which a long series of previous decisions applying a particular rule is very important and may be determinative in subsequent cases. This doctrine is recognised in most civil law jurisdictions, in the civil law of Louisiana for example Source: http://en.wikipedia.org/wiki/Jurisprudence_constante

RECEDENT (stare decisis) v JURISPRUDENCE CONSTANTE The rule of law applied in the jurisprudence constante directly compares with stare decisis. The main difference is this: “a single court decision can provide sufficient foundation for stare decisis, however, "a series of adjudicated cases, all in accord, form the basis for jurisprudence constante” Also, the Louisiana Court of Appeals has explicitly noted that jurisprudence constante is merely a secondary source of law, which cannot be authoritative and does not rise to the level of stare decisis. Source: Royal v. Cook,, 984 So.2d 156 (La. Ct. App. 2008) as cited on http://en.wikipedia.org/wiki/Jurisprudence_constante

Civil v common law generally Here’s an audio-only recording discussing the differences and similarities between the civil law and common law systems generally http://www.youtube.com/watch?v=e8qTmN-w86Q Have a listen to these experts discuss this topic

UK Supreme Court BBC documentary (1 hour) about the UK’s Supreme Court They focus on 4 particular Justices and they ask them about their roles, how they decide cases, how they write their judgments It touches upon many of the things we have discussed in class http://www.youtube.com/watch?v=PZtYENfNa7k

US v UK courts Here is a link to a video that features two famous judges, one from the US and one from the UK Justice Ruth Bader Ginsberg is on the US Supreme Court Baroness Hale is on the UK Supreme Court They talk about some differences and similarities between the highest courts in the US and the UK in this video: http://www.youtube.com/watch?v=pYR414Q8v6A

Conclusion We can compare civil law v common law in the areas of courts, lawyers and judges Within each of those areas we can look at specific things – eg. How are judges appointed/removed, the role of the judge, how they are perceived etc… We can can also compare within the civil law legal systems (eg compare France and Kuwait or France and Germany) We can compare within the common law (eg compare UK with the US) It is useful to first describe each system and then to draw out the similarities and differences before making some conclusions